On Lawyers and “Process”

 

Recently a colleague posted this question pondering an observed dearth of business process-improvement interest among lawyers with whom he works:

“I continue to notice attorneys are very disengaged with process improvement. It’s usually in the hands of the administrators and paralegals only….the legal industry has the highest requirements for compliance and disaster recovery, but we still find an abundance of law firms working with manual processes and outdated technology. Why?”

Among the 50+ responses posted so far, a consistent focus on process efficiency (variously worded as “profitable”, “rapid”, “faster” and similar terms) emerges as the predominant perceived benefit of process-improvement efforts. Many of those responding went on to observe that speeding up a firm’s processes through improved efficiency, is counter to the “bill a lot of hours” mindset which most professional-services firms (including law firms) instill in their practitioners. It’s a fascinating look at the business of law through the eyes of seasoned veterans, with a sobering dose of the business climate many firms face every day.

Of course, firm revenue (hours billed) is of paramount importance. But in reading through the responses, it struck me that the fraternal “twin” of process efficiency – the goal of increased process effectiveness – was missing from the dialogue. Having spent many years engaged in business-process improvement projects, an opportunity to turn the perspective to focus (in a business-of-law context) on the value of pursuing benefits relating to process effectiveness, screamed for attention.

Business process improvement (BPI) is a critically important, core competence for many businesses. Possibly the most famous among the many industries which employ some version of BPI (as well as similar service-quality methodologies like Total Quality Management (TQM)) is manufacturing, where quality circles and continuous-process improvement techniques have evolved into a veritable survival kit in an increasingly global market. Another well-known example (one with seemingly higher affinity to law firms) stems from the substantial business-process changes experienced in financial operations in many publicly-held companies as a direct result of the Sarbanes-Oxley Act of 2002. Both are examples of BPI which sought – and delivered –  major benefits related to process efficiency as well as process effectiveness. So, what’s the difference, and where are the opportunities that law firms could identify and seek when considering an investment in BPI?

Understanding that BPI may seem ‘foreign’, or somehow not applicable, to a knowledge-intensive profession such as the practice of law, an example seemed in order. What follows is a litigation hold-based illustration of business process effectiveness and some potential benefits for law firms and corporate legal departments (shared here for those who are not members of the LinkedIn “Legal IT” discussion group).

While one might ponder whether such benefits as speed, efficiency and profitability provide valid reasons for business process improvement (BPI), there’s another potential upside – process EFFECTIVENESS. That is, does the process produce the required (or desired, or defensible) results with acceptable error rates?

Before readers glaze over, think about a litigation hold – a legal business process which is currently under enormous scrutiny. Debate about what is required for preserving (potential) evidence for subsequent production continues, despite a feverish level of gastric distress already evident. While nobody suggests that “perfection” should be the standard for preserving potentially relevant information in a party’s possession, custody or control, woeful is the litigator faced with an adversary (or worse, a judge) armed with evidence of said litigator’s ineffective lit-hold process. Sure, the process needs to be efficient, but beating the timeline isn’t enough. Increasingly, judges are probing the “how” and “who” aspects of litigation holds (and the measures employed to ensure “quality” results). The definition of “acceptable” continues to narrow as a result. What was good enough in 2006 probably won’t cut it in 201x (see Judge Scheindlin’s recent decision on custodian-driven preservation and collection).

Process-improvement approaches provide myriad, proven tools and techniques for identifying and reducing process issues (“defects”) which lead to sub par efficiency, effectiveness or both. (While the topic is too rich and layered for the limits of a blog comment, a modest search just on Wikipedia yields dozens of useful references for interested readers). The benefits enabled by process improvement are legendary in the manufacturing space (common examples include double-digit productivity increases). But the techniques apply to any business process. Measuring process results – good AND bad, or “desired” AND “defective” – and identifying the underlying cause(s) for variances, are worthwhile steps for ensuring the quality of any business process. More complex processes, especially those with a more “populous” cast of participants, correspond to higher odds that DEFECTS (undesired results) will materialize.

Return (briefly) to the lit-hold example. Imagine a litigator, capably describing a lit-hold process in terms of:

  1. the measures (metrics) designed-in to identify and reduce obstacles (process defects) to effectiveness;
  2. the steps taken (and by whom) to reduce or eliminate those obstacles, and;
  3. the effect of said changes on the overall completeness and quality of the preservation (and subsequent production) of discoverable content

 – does this sound like a defensible process? Would periodic reports of common “defects” (like, an incomplete training exercise generating over- or under-preserving because custodians couldn’t fully identify all the potentially relevant sources) and the corrective measures taken as a result (such as specific changes in the questions used during custodian interviews) – over the course of several iterations of sample-and-recalibrate cycles – demonstrate reasonable efforts to ensure effectiveness (compliance) against a party’s discovery obligations?

Perhaps it’s not a thought pattern developed in law school, but it CAN be developed and applied to the business processes lawyers “own”. Examples abound of “thought workers” like mechanical engineers and trauma-ward caregivers (whose level of skill and workplace pressures (at least) resemble those of time-starved and docket-rich attorneys) who have benefited from increased effectiveness of the critical processes in their own jobs.

What are your thoughts? We welcome feedback, especially alternate points of view. Perhaps there are attorneys reading this who could comment from their own experience – any manufacturing-industry general counsel in the audience?

 

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About Joe Treese at ESIDence

ESI Governance & Risk Management
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